New twist in ‘Crude’ suit

Media companies join filmmaker's fight against Chevron

It’s inevitable that we will soon see damning exposes about the environmental disaster caused by the BP oil spill in the Gulf of Mexico, but documentary filmmaker Joe Berlinger cautions against making parallels to his own situation.

As tempting as it may be, the battle he is waging against Chevron, which wants him to turn over some 600 hours of outtakes from his 2009 documentary “Crude,” has drawn enough attention on its own merits.

A growing chorus of TV networks, Hollywood guilds, media figures and fellow directors have come to his defense, fearful of a chill setting in over documentary filmmakers and investigative journalists if they face an ever-present prospect of having their material subject to review by parties in litigation.

“I am not resisting this subpeona because I’m anti-big oil,” Berlinger said this week. “I’m resisting this because of First Amendment principles.”

His doc chronicled the legal battle between Chevron and a class action suit filed by residents of Ecuador, who claim that Chevron is responsible for the environmental damage and ill health effects from years of drilling in their homeland.

Judging by the awards it has won, “Crude” is Berlinger’s biggest critical success, but he didn’t get rich off of it. He faces hundreds of thousands of dollars in legal bills — some of which are being picked up by Sting and Norman Lear — but has grown more open to the idea of going to jail for contempt of court, depending on the circumstances.

Chevron says that it needs the clips because scenes in “Crude” raise suspicion of unethical shenanigans between the plaintiffs and the country’s legal authorities, as well as government officials.

With that in mind, last month U.S. District Court Judge Lewis Kaplan granted Chevron’s subpoena — an action that shocked Berlinger and surprised those in the industry.

As Berlinger seeks a stay in the Second Circuit Court of Appeals, with a hearing set for Tuesday, at the very least the case is opening the eyes of many as to just what is protected and what is not. There’s a tendency among many creatives, whether journalists or filmmakers, to assume some all-encompassing First Amendment privilege. In fact, there is no federal shield law.

So it fell on Kaplan to cite the Second Circuit’s 1999 decision in Gonzales vs. NBC, which held that journalists had a “qualified privilege” to protect even non-confidential material, but that litigants could obtain the material if they showed that it was relevant and not reasonably obtainable from other available sources. In Kaplan’s mind, Berlinger did have journalistic privilege, but Chevron also jumped through the hoops.

Berlinger and his legal team, led by Maura Wogan of Frankfurt Kurnit, contend that’s a misreading of Gonzales, and zero in on the fact that he is being asked to turn over not just outtakes from a particular scene, but everything he has.

Their argument was bolstered by First Amendment lawyer Floyd Abrams, who weighed in this week with a friend-of-the-court brief on behalf of 13 media companies and other orgs. He wrote, “Having Berlinger’s material as well as its own might (or might not) prove a useful addition to Chevron — but that is not the standard. Here, as was the case throughout the District Court’s opinion, the District Court made it far too easy for Chevron to obtain far too much, precisely what Gonzales forbids.”

Chevron probably can’t ask for a worse time to be waging a PR side of a legal battle. Even Kaplan, warning not to let politics seep into the proceedings, rather flippantly said at a recent hearing, “Everybody hates oil companies. We all understand that.”

But Chevron sees their battle in Ecuador as one against a corrupt process and snap judgments. Because Berlinger obtained such substantial access to the plaintiffs and their lawyers, and included so much of them in the movie, all of the material is relevant to their claims of a tainted legal system, they argue. “The outtakes are likely to be a virtual ‘Candid Camera‘ of the plaintiffs’ counsel’s misconduct,” said its lead counsel, Randy Mastro of Gibson Dunn & Crutcher.

Among other things, they point to a scene showing a “supposedly neutral court expert” in cahoots with the plaintiffs’ legal team that was taken out of the homevideo release.

Berlinger says that the scene was misconstrued and that it was taken out for the very reason of preventing it from being taken out of context, and that it is still in the Netflix version. He said he did take the scene out at the request of the plaintiffs’ legal team, but he also screened the movie for Chevron, and their PR rep called the film “fair and balanced.”

Kaplan’s resolution to all of this is rooted in his quoting of Louis Brandeis — “Sunlight is said to be the best of disinfectants” — but to many in Hollywood, too much of that sunlight is enough to give them heat stroke.